Managing remote work – human rights considerations

April 23, 2020

April 23, 2020

The deepest impacts of COVID-19 are being felt by those who have lost their jobs and those who are struggling to keep their businesses afloat. We have worked, in our previous blog posts, to provide clear, quality information to help those people assess their rights and navigate complex and evolving circumstances.

In this post, we turn to those who are still working and who are trying to make it all work –employees working remotely, with a particular focus on those who are juggling kids and work. We provide information for employers seeking to understand how to manage employees who are conducting conference calls and teaching long division while trying to find an online grocery delivery service that will send milk before they run out.

The reality is that people, particularly parents, are being asked to do the impossible – to work full time, to run a homeschool (or even just keep their children healthy and happy), and to run a household all at the same time and with limited to no ability to bring anyone into their home to help.

Additionally, everyone, whether they have children or not, is experiencing higher than normal levels of stress and anxiety, raising questions about mental health. Further, and as always, stressful situations allow bias and racism to bubble up, leading to additional stress and anxiety for racialized people.

Human rights laws prohibit discrimination on the basis of a number of protected grounds, including sex, marital status, family status, disability, race, ethnic origin, and place of origin.

Employers have a duty to adjust rules, policies or practices to accommodate employee’s needs relating to protected grounds up the point of undue hardship. This is called the duty to accommodate. Undue hardship is a high threshold

Some commentators have postulated that an employer’s duty to accommodate may be heightened given the unique circumstances of the pandemic. It is prudent for employers to:

Remember that any existing obligations to accommodate employees continue. As you transition to remote work or make other changes, be sure to factor in and adhere to existing accommodation plans.
Be proactive and ask your employees about new and emerging accommodation requirements. You may want to conduct a survey if you have a significant workforce or you may prefer to have managers speak one-on-one with staff and report on their findings.
Talk to all staff, not just those you think may face challenges. First, because you don’t want to open yourself up to allegations that you proceeded on the basis of, for example, a perceived disability or family status challenge. Second, you may overlook some employees’ needs for accommodation if you undertake a more targeted approach.
Document – thoroughly – all accommodation efforts. It is critical that employers thoroughly document all accommodation efforts. Failure to accommodate may leave employers vulnerable to discrimination claims, and arguments of undue hardship will likely fail if no accommodation attempts were made.

Employees are struggling both with the reality of changes to how they work and live and with challenges regarding the perceptions of their employers. For employees, we recommend:

Communicating openly with your employer and manager and working proactively and collaboratively to identify any accommodation needs you have and to develop workable solutions
Document your efforts to seek accommodation and obtain accommodation
Keep track of hours worked and accomplishments while working remotely. Documenting what you have achieved may protect you from claims that you were unproductive or unavailable.

Below, we touch on several kinds of discrimination related to the pandemic and provide some thoughts on how to approach these questions. As with all employment matters, we recommend that you consult an expert for help when you need it – whether you are an employer or an employee.

Family status

In Ontario, family status discrimination is limited to discrimination arising as a result of the status of being in a parent-child relationship. This means that employees can bring claims relating to their obligations to care for their children and their parents. In the current climate, with schools closed and many long-term care facilities suggesting that those who can take their parents home, employees may have multiple, competing demands on their time that are largely incompatible with productive full-time work.

Single parents and those who have primary responsibility for children and/or parents will obviously feel the brunt of this, and we know that, in Canada as in much of the world, the bulk of this caregiving work is done by women.

Further, though existing human rights decisions have created a high threshold for workers to establish discrimination claims on the basis of marital or family status by imposing a requirement on the worker to “self-accommodate”, self-accommodation may not be possible during the pandemic. For example, school and childcare closures may make it impossible for the worker to find childcare options.

Employers should proactively address the challenges faced by their workforce relating to family status obligations through a combination of accommodation strategies tailored to meet the needs of the business. For example:

Establish flex hours and allow staff to work at different times. This may be an especially attractive strategy for two-parent families who are balancing two jobs.
Set meetings in advance so parents can prepare and get their children engaged in an activity during meetings.
Establish clear deliverables and timelines so everyone understands expectations and can make plans to meet them.
Ask staff what they need to make this work and engage in productive discussions to support people doing as much work as possible.

In some circumstances, and depending on the nature of the work, it may be appropriate to encourage people to use vacation time, reduce their hours of work, or take a leave of absence. In these cases, employers should carefully consider how to avoid making changes that exacerbate or are influenced by protected grounds, including gender and family status.

Family status is a relatively undeveloped ground of discrimination. Different provinces have defined family status differently. Further, during the current public health crisis, the Ontario government has used an expansive definition of family that encourages people to care for a variety of family members, including chosen family. This may affect the definition of family status and employers may consider providing human rights accommodating a broader range of relationships than what is currently required by law.

Gender

It is crucial that employers be aware of the gendered impact of the pandemic. In addition to being a social issue, gender equality in the workplace is a legal issue and business issue for employers.

Women are already disproportionately affected by workforce cuts and layoffs as they take on greater care demands at home. Even women who can telecommute are experiencing what the Canadian Women’s Foundation calls the “double burden of unpaid and paid work”. The extra burden of unpaid work during the pandemic may make it difficult or impossible for women to continue to perform their paid work as before.

The unequal division of unpaid work not only makes women less likely to participate in the labour force, but, in heterosexual couples, it also facilitates men’s paid work further deepening the divide between men and women in the paid workforce.

These inequalities (among others) are exacerbated as women step up to respond to the greater demands of unpaid work responsibilities from emergency business closures and quarantine measures. According to the United Nations Policy Brief: The Impact of COVID-19 on Women, released last week:

Women’s unpaid care work has long been recognized as a driver of inequality. It has a direct link to wage inequality, lower income, poorer education outcomes, and physical and mental health stressors. The unpaid and invisible labour in this sector has been exacerbated by the COVID-19 pandemic. But the pandemic has also made starkly clear the way in which the daily functioning of families, communities, and the formal economy are dependent on this invisible work.

Women who have lost their jobs during or as a result of the pandemic (keeping in mind that women are over-represented in the service industries that have been hit especially hard by the emergency business closures and travel restrictions) are less likely to seek out replacement paid work. And, as the economy begins to reopen, many women will likely to seek to rejoin the workforce later than their male counterparts because they will take on responsibility for sorting out unpaid work responsibilities. The impacts of this will continue well beyond the point where we are back to “normal”, as more women will also take on responsibility for managing the emotional fallout experienced by children as they transition back to daycare and school.

Ultimately, what many see as private arrangements, including decisions about who has primary responsibility for the children who are suddenly at home during normal working hours, will have serious repercussions on women’s ability to continue to participate in paid work. Employers should look at changes to work, including policy changes and decisions about layoffs and leaves, through a gendered lens. That means they should acknowledge that gender is at play and affects how the pandemic, social distancing, school closures, and other changes will affect workers. It also means that when employers are looking at changes, they should examine who will be impacted. For example, if an employer is considering layoffs, it would be prudent to look at who will be laid off and if, for example, a disproportionate amount of the people who will be laid off are women or parents, to reconsider the approach taken. The continued participation of women and parents in the workforce is crucial to both equality and to the future success of businesses.

Disability

As noted above, any existing plans or obligations to accommodate an employee who has a disability must be maintained even as the nature and organization of work changes.

Additionally, employers should be alive to the possibility that the current circumstances may exacerbate or lead to new disabilities. The stress of life during a pandemic is significant. We are being asked to absorb new information daily about the public health situation. People are home with a small number of family members, which can lead to tension and stress. Family violence has spiked. Parents are spending “spare time” researching curricula and sourcing resources to make sure their children don’t fall behind in school. Grocery shopping requires line ups and tense efforts to socially distance or frustrating efforts to find a delivery service that is available. We are, as many experts remind us, experiencing a dramatic shift in every aspect of our life and that is challenging and, for some, will lead to or exacerbate anxiety, stress, and mental illness.

Employees facing new or emerging mental or physical disabilities may have challenges accessing health professionals and it may be difficult to obtain expert medical advice about accommodation. Employers and employees should attempt to work together in the absence of expert advice to put accommodations in place.

Employers may want to consider:

Proactively reminding employees about resources that exist, including EAPs
Pointing people to resources to help them manage their stress
Becoming a source of credible and useful information about COVID-19. Building a shared understanding of the challenge we are facing can help alleviate stress, particularly stress about how COVID-19 will impact their job.
Communicate regularly and as openly as is reasonable about the impact COVID-19 is having on business. Giving staff more information should help them understand and plan.
Maintaining open communication so that emerging issues can be identified and addressed. This is challenging in a remote work environment.
Being flexible about requiring doctor’s notes, medical evidence or opinions, or other third-party advice about accommodation requirements.
Developing protocols around return to work or attendance at the office that take into account the needs of those who are uniquely vulnerable to COVID-19, i.e. those who are immune-compromised.

Employees:

Remember that you do not need to disclose your particular disability, you need only identify what your accommodation needs are. Privacy is still possible.
Consider how to get advice or information from a third party or medical professional about your accommodation needs.
Document your efforts to seek accommodation and any responses from your employer.

Race, ethnicity, place of origin

There have been innumerable reports of racist attacks – both verbal and physical – during this pandemic. Employers have a responsibility not to condone or engage in racist reasoning or responses to this pandemic. This means both ensuring that policies and practices of the employers are non-racist and considering how to respond to comments and actions of employees that may be racist.

You may want to consider new or existing policies requiring employees to respect human rights and determine in advance how those can be applied in the current environment. Spreading quality information and reminding staff about their obligation to treat all coworkers and clients equitably and without discrimination may also promote a healthy and human rights respecting workplace during this difficult time.

The New Normal

Employers should be flexible when removing accommodations at the end of the crisis. We do not yet know when the need for pandemic-related accommodation will end, but it seems like that the return to “normal” will be graduated and slow. Employers should not take a hard-line approach to removal of accommodations at the end of the pandemic emergency given the ongoing inequalities and discrimination that workers may face beyond the “end” of the COVID-19 emergency.

Beyond considering strict legal requirements, business may be well-served by viewing this as an opportunity to assess its role in facilitating and promoting equality in the workplace. For women in particular, the pandemic is bringing to light the many challenges associated with women’s ongoing and primary responsibility for unpaid caregiving work. The business case for gender equality in the workplace is well-researched and established. Gender equality in the workplace is associated with enhanced talent acquisition, better employee retention, business growth and innovation, and stronger and more authentic connections with consumers/clients. In short, gender parity in the workplace can translate to better business performance.

There are a multitude of ways employers can promote gender parity in the workplace: you will know what would work best for your business. A few ways in which businesses can help combat the gendered impacts of COVID-19 in their workplace include:

Adjusting hiring practices when the economy reopens to increase diversity by, for example, including women on the interview panel, setting diversity quotas for women in certain roles, not penalizing time gaps on women’s resumes, and allowing flexible start dates to accommodate women who may need extra time to settle their unpaid work responsibilities at the end of the pandemic.
Promoting work-life balance by, for example, offering childcare and caregiving support, allowing remote work options or flexible working hours, setting schedules in advance (and sticking to them) to allow workers to make childcare arrangements and leisure plans, restricting employee hours, offering exercise benefits (e.g. reimbursement for gym memberships), and encouraging vacations.
Establishing an inclusive workplace culture by, for example, giving more women in leadership roles, changing gender-biased words in company communication, ensuring equal mentorship and promotion opportunities, and providing and mandating ongoing training, including training on unconscious bias.

Building a diverse workforce that includes women, parents, racialized people, and people with disabilities is good for business. While COVID-19 presents many challenges, it also presents an opportunity for employers to reinforce their commitment to human rights and to building and supporting a diverse workforce.

How we act in times of crisis reveals a great deal about our values. Employees will remember whether their workplace was a place of support and help in a time of crisis or whether it revealed and failed to respond to discriminatory attitudes. How we respond to the human rights challenges of COVID-19 will help us build a successful and committed workforce or will lead to attrition and lost talent.

If you have questions relating to employment law, civil litigation, workforce planning and management, or require strategic advice in this difficult time, we are here to help.